ML20008F215
| ML20008F215 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 03/10/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | TEXAS PUBLIC INTEREST RESEARCH GROUP |
| References | |
| ALAB-635, NUDOCS 8103120530 | |
| Download: ML20008F215 (3) | |
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NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Administrative Judges:
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0 Alan S. Rosenthal, Chairman Dr. John H. Buck NOPff) AIAR j Christine N. Kohl
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In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466 (Allens Creek Nuclear Generating
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to Station, Unit No. 1)
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Mr. James Morgan Scott, Jr., Sugar Land, Texas',
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for the intervenor Texas Public Interest Re!.?,
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search Group.
%1 MEMORANDUM AND ORDER 7
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March 10, 1981 (ALAB-635) 1.
We have before us the January 15, 1981 motion of inter-venor Texas Public Interest Research Group (TexPIRG) seeking di-rected certification of an interlocutory ruling of the Licensing Board.
See 10 CFR 2.718 (i), Public Service Co. of New Hampshire l
l (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 l;
(1975).
The ruling in question -- contained in an unpublished l
order entered on September 15, 1980 -- rejected TexPIRG's position ll lj that the NRC staff should be required to prepare a supplement to l!
l its Final Environmental Statement for the Allens
(. reek facility.
l The supplement envisioned by TexPIRG would address the environ-l mental impacts of so-called " Class 9 accidents".
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- 4 In an unpublished order entered on January 19, 1981, we an-nounced that we would withhold decision on the directed certifi-cation motion to await Licensing Board action on the simultaneously filed request that it either (1) refer its September 15 ruling under 10 CFR 2.730 (f) or (2) certify the question decided in the ruling under 10 CFR 2.718(i).
On March 2, 1981, the Licensing Board acted:
in an unpublished memorandum and order, it denied the request.
The directed certification motion is thus now ' ripe for our determination.
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Almost four years have elapsed since our n. cation that:
i Almost without exception in recent times, we
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have undertaken discretionary interlocutory l
review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact j
which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
Public Service Co. of Indiana (Marble Hill Nuclear Generating i
i Station), ALAB-405, 5 NR' 90, 1192 (1977) (footnote omitted).
I That standard still preva.
In this instance, it is not met.
The fact that TexPIRG waited four full months before seeking interlocutory review of the September 15 ruling gives a hollow ring to any claim on its part that the ruling threatens it with irreparable impact both immediate and serious.
Beyond that, it has not been satisfactorily explained why appellate scrutiny of the ruling cannot abide the event of the initial decision and (if
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dissatisfied with the result reached in that decision) TexPIRG's l
appeal from it.
To be sure, if the ruling were found erroneous
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3 on such an appeal, the consequence might well be a vacation of the initial decision and a remand to the Board below.
But the i
same possibility exists with respect to all interlocutory deter-minations made by licensing boards on matters which have a poten-
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tial bearing upon the outcome of the proceeding.
If, standing i
alone, that consideration were enough to justify interlocutory i
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review, it would perforce follow that virtually every significant licensing board ruling during the course of a proceeding would be i
a fit candidate for immediate appellate examination.
It is scarcely I
necessary to expound at any length upon why a dras' tic alteration of existing practice to accommodate that thesis would be intoler-
'I able -- as well as in derogation of the Commission's explicit 5
policy disfavoring interlocutory review.
10 CFR 2.730 (f).-1/
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i Directed certification denied.
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It is so ORDERED.
i FOR THE APPEAL BOARD f
Q 4 - M.elkM C. Jegn Bisnop
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j; Secretary to the iE Appeal Board 1[.
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No serious claim has been, or could be, made that the ruling in question has "affected the basic structure of the proceed-l ing in a pervasive or unusual manner".
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